Child Law (International)
by Anatol Dutta
The harmonization of substantive law in the area of child law (child protection) is still in its early stages. Noteworthy attempts to directly harmonize child law are, for example, the Convention on the Legal Status of Children Born out of Wedlock of 1975 and the UN Convention on the Rights of the Child of 1989; both Conventions, however, predominantly address the contracting states and not private parties. Additionally, there has been some indirect harmonization of child law by European human rights law; in particular, the European Court of Human Rights (ECtHR) has often recognized an impact of the European Human Rights Convention on child law and procedural law in child cases—a development which might trigger some convergence of the different laws. Due to this lack of harmonized procedural and substantive rules, international child law is still of particular importance.
1. Sources of law
The current rules dealing with cross-border child cases are characterized by a co-existence of international Conventions, European law and national law. Looking at the sources of international child law, one will primarily encounter three Conventions adopted by the Hague Conference on PIL: the Hague Convention on the Protection of Minors of 1961 (Hague Minors Convention); the Hague Convention on the Civil Aspects of International Child Abduction of 1980 (Hague Child Abduction Convention); and the Hague Convention on Parental Responsibility and the Protection of Children of 1996 (Hague Children Convention)—the latter reforming the 1961 Hague Minors Convention. Those three Hague Conventions are accompanied by the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children of 1980 (European Children Convention) which, however, did not become very important in practice.
Those international Conventions are partly complemented and partly superseded by European law. The procedural aspects of international child law are addressed by Reg 2201/2003, the so-called Brussels IIbis Regulation, which succeeded the old Reg 1347/2000, the so-called Brussels II Regulation. The Brussels IIbis Regulation deliberately adopts procedural rules of the 1996 Hague Children Convention (see COM (2001) 505 final, p 6; COM(2002) 222 final/2, p 9); as a consequence, for the interpretation of the Brussels IIbis Regulation one might resort to the 1996 Hague Children Convention and its travaux préparatoires (see opinion of AG Juliane Kokott in ECJ Case C-435/06 – C  ECR I-10141 paras 48 ff).
The overlap of the Hague Conventions and European law is astonishing at first glance if one considers that numerous Member States have ratified the 1961 Hague Minors Convention, all Member States are contracting states to the Hague Child Abduction Convention and the 1996 Hague Children Convention has even been confirmed by the European legislature: the Council of the European Union has requested the Member States in 2002 and 2008 to sign and ratify the 1996 Hague Children Convention in the interest of the European Community, which itself cannot become a party to that Convention. The reasons for the additional activities of the European legislator are twofold: the efficiency of secondary Union law and the federalization of a European area of justice. Despite the Council’s decisions, the 1996 Hague Children Convention has still not been ratified by all Member States. That delay of ratification has triggered the European legislature to unilaterally adopt parts of the 1996 Hague Children Convention by the Brussels IIbis Regulation in order to make them obligatory in advance for the Member States.
The slight modifications of the Hague regime, which can be found in the Brussels IIbis Regulation, however, are not rooted in different political views but rather in the process of federalizing judicial cooperation within Europe. Some of the Hague provisions may be adequate for sovereign states; yet, they are unsuitable for an increasingly federalized European area of integrated jurisdictions. In this respect, European law, however, does not contradict the Hague Conventions; they allow for a further integration of the contracting states, for instance in Art 36 of the Hague Child Abduction Convention and Art 52 of the 1996 Hague Children Convention. Hence, international child law is a good example of the declining influence of international Conventions in the context of private international law within Europe—a development which presents the Hague Conference on PIL with new challenges.
The substantive scope of both international Conventions and European law in the area of international child law encompasses the attribution, exercise, delegation, restriction and termination of parental responsibility (Art 1(1)(b), (2) Brussels IIbis Regulation; see also Art 3 of the 1996 Hague Children Convention). Excluded from the common rules are, however, all questions of parentage, adoption, the name and forenames of the child (law of names) and maintenance (see Art 1(3) Brussels IIbis Regulation; Art 4 of the 1996 Hague Children Convention).
Additionally, the Brussels IIbis Regulation applies, according to its Art 1(1), only to ‘civil matters’, in contrast to the 1961 Hague Minors Convention and the 1996 Hague Children Convention. At first glance, one could infer from this restriction that the Brussels IIbis Regulation does not apply to measures of the state for the protection of children such as, for example, a child being taken into care or placed in a foster family. The exclusion of such state measures would be supported by the uniform interpretation of the term ‘civil matter’ with the term ‘civil and commercial matters’ in other European instruments. According to the ECJ’s interpretation, a ‘civil and commercial matter’ is excluded if the legal relationships between the parties and the subject matter of the claim result from acts of the state in exercise of its public authority (see only ECJ Case 29/76 – Eurocontrol (1976) ECR 1541, para 4)—a definition which would probably also cover state interventions in parental responsibility such as the taking into care or placement of a child mentioned above. However, in case C (ECJ Case C-435/06 – C  ECR I-10141 paras 51 and 53; see also ECJ Case C-523/07 – A  ECR I-2805 paras 21 ff) the ECJ has decided that, based on an autonomous and—notably—independent interpretation of the Brussels IIbis Regulation, the term ‘civil matter’ covers all proceedings regarding parental responsibility. As a result, the limitation of the Regulation’s scope to ‘civil matters’ has hardly any significance left.
3. Jurisdiction, recognition and enforcement of decisions
The procedural aspects of international child law within the European Union are almost exclusively governed by European law. While the Brussels II Regulation was limited to proceedings on parental responsibility arising in connection with divorce (Art 1(1)(b) Brussels II Regulation), the Brussels IIbis Regulation covers all proceedings concerning parental responsibility. Therefore, little room is left for the 1961 Hague Minors Convention, the 1980 European Children Convention and the 1996 Hague Children Convention (Arts 60(a) and (d), 61 Brussels IIbis Regulation) as well as national law, albeit that the delimitation of the different instruments is quite complicated in detail.
The jurisdictional rules of the Brussels IIbis Regulation are widely inspired by the 1996 Hague Children Convention. First, the courts of a Member State have jurisdiction in matters of parental responsibility over a child who is habitually resident (habitual residence) at the time the court is seized (Art 8(1) Brussels IIbis Regulation; see also Art 5 of the 1996 Hague Children Convention). In assessing the habitual residence of a child, the ECJ requires the courts to analyse all circumstances of the individual case and to decide whether the physical presence of the child is not in any way temporary or intermittent and whether the residence of the child reflects some degree of integration in a social and family environment (ECJ Case C-523/07 – A  ECR I-2805 paras 37 ff). In doing so, especially ‘the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that state, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration’ (ECJ Case C-523/07 – A  ECR I-2805 para 39; see for infants also ECJ Case C-497/10 PPU – Mercredi). A change of the child’s habitual residence after seizure of the court in the sense of Art 16 Brussels IIbis Regulation does not affect the jurisdiction of that Member State and, hence, results in a perpetuatio fori (see also Art 5(2) of the 1996 Hague Children Convention). Furthermore, the courts at the child’s habitual residence, under certain circumstances, remain competent if the child lawfully changes his or her habitual residence (Art 9 Brussels IIbis Regulation) or if the child is wrongfully removed or abducted from the Member State of his or her prior habitual residence (Art 10 Brussels IIbis Regulation; see also Art 7 of the 1996 Hague Children Convention).
Where a child’s habitual residence cannot be ascertained or if the child is a refugee, the courts of the Member State in which the child is physically present have jurisdiction (Art 13 Brussels IIbis Regulation; see also Art 6 of the 1996 Hague Children Convention). If jurisdiction cannot be established under the Brussels IIbis Regulation, the lex fori of the Member States determines jurisdiction (Art 14 Brussels IIbis Regulation). Furthermore, the jurisdiction of a court not competent under the Regulation can be ‘accepted’ by the spouses if the proceedings arise in connection with a divorce (Art 12(1) Brussels IIbis Regulation; see also Art 10 of the 1996 Hague Children Convention). Additionally, the parties can prorogate the jurisdiction of a Member State court if the child has a substantial connection to that Member State (Art 12(3) Brussels IIbis Regulation). Quite innovative for civilian systems is the possibility for a competent court to transfer its jurisdiction to a court better placed to hear the case (Art 15 Brussels IIbis Regulation; see also Arts 8 and 9 of the 1996 Hague Children Convention). That provision comes close to the common law doctrine of forum non conveniens.
Both, the prorogation of jurisdiction (Art 12(1) and (3) Brussels IIbis Regulation) as well as the opportunity to transfer the case to a court better placed (Art 15(1) and (5) Brussels IIbis Regulation) are subject to the best interest of the child. The notion ‘best interest of the child’ in that context, however, only refers to the child’s well-being regarding jurisdiction. The judge has especially to decide whether the courts potentially competent under Arts 12 and 15 Brussels IIbis Regulation are as capable of assessing the best interest of the child in substance as the courts at the habitual residence, which, in principle, have primary jurisdiction.
The rules of the Brussels IIbis Regulation on recognition and enforcement of decisions in matters relating to parental responsibility within Europe are geared to the general European rules for civil and commercial matters, particularly those contained in the Brussels I Regulation. Only the reasons for denial of recognition are—unlike under the Brussels I regime—reviewed already in the first instance of the exequatur proceedings (Art 31(2) Brussels IIbis Regulation). Furthermore, provisional measures ordered by a court competent under Art 20 Brussels IIbis Regulation are not enforceable in other Member States (ECJ Case C-256/09 – Purrucker I; see as to those measures also ECJ Case C-403/09 PPU – Detiček and ECJ Case C-296/10 – Purrucker II). Noteworthy, however, is the fact that for certain decisions on parental responsibility, the necessity of exequatur proceedings has been abolished. Namely decisions on the right of access (Art 41 Brussels IIbis Regulation) and on the return of an abducted child (Art 42 Brussels IIbis Regulation; see ECJ Case C-195/08 PPU – Rinau  ECR I-5271; ECJ Case C-211/10 PPU – Povse) are directly enforceable in all Member States. Even the violation of fundamental procedural rights cannot be invoked in the enforcement Member State but only in the Member State whose decision is to be enforced (ECJ Case C-491/10 PPU – Aguirre Zarraga). However, one should not overlook the fact that the enforcement procedures have not been harmonized in Europe (see Art 47 Brussels IIbis Regulation). For that reason, delays in enforcing foreign decisions on rights of access and return of the child—decisions which are already quite difficult to enforce in domestic cases—will be inevitable, the more so as, in Germany for instance, the enforcement of these decisions is implemented in a separate enforcement procedure under national law (see § 44 IntFamRVG, §§ 88 ff FamFG).
4. Judicial cooperation in cross-border child abduction cases
In cases of cross-border child abduction the abductor wrongfully removes a child from the state of his or her habitual residence in another state in breach of another’s rights of custody. The 1980 Hague Child Abduction Convention offers a highly effective tool to ensure the swift return of the child to the state of original habitual residence and guarantees the fast re-establishment of status quo ante—thereby not only protecting the child’s best interests and the private rights of custody violated by the abductor but also the jurisdiction of the state of original habitual residence (eg according to Art 8(1) Brussels IIbis Regulation, see 3. above). The Hague Child Abduction Convention differs from typical Conventions on recognition and enforcement of foreign decisions, such as, for instance, the 1980 European Children Convention. In contrast to such instruments under the Hague Child Abduction Convention, no foreign decision on the return of the child is enforced; rather, the Hague Convention obliges the state where the child is retained to initially decide about the return of the child regardless of whether a decision has already been reached in the state of previous habitual residence. Therefore, the Hague Child Abduction Convention contains rules of substantive law determining the conditions under which a child has to be returned to the state of his or her original residence if it has been wrongfully—ie in breach of another’s rights of custody being actually exercised (Art 3 of the Hague Child Abduction Convention)—removed to or retained in a contracting state (Arts 1(a), 12, 13 of the Hague Child Abduction Convention).
Furthermore, the Hague Child Abduction Convention provides guidelines for the return proceedings. In particular, the Convention determines how the contracting states have to implement the return by cooperating through central authorities (Arts 6–10, 24 of the Hague Child Abduction Convention), it defines how the wrongfulness of the child’s removal or retention should be ascertained (Arts 14 ff, 23 of the Hague Child Abduction Convention) and specifies how the return proceedings (Art 16 of the Hague Child Abduction Convention) and return decisions (Art 17 of the Hague Child Abduction Convention) relate to potential proceedings and decisions on the merits of the custody case in the state in which the child is retained. Moreover, the Hague Child Abduction Convention obliges the contracting states to use for the return proceedings the most expeditious procedures available under national law (Art 2 s 2, Arts 11, 12 of the Hague Child Abduction Convention). Proceedings for the return of the child are a race against the clock: the later a decision is reached, the more the connections to the state of original habitual residence are weakened and the more a new reality is created solely by the lapse of time.
The European legislature—contrary to initial suggestions—did not fundamentally change the return mechanisms of the Hague Child Abduction Convention with the Brussels IIbis Regulation. Rather, the Brussels IIbis Regulation tries to effectuate the Hague Child Abduction Convention in order to develop an even more effective mechanism for the swift return of abducted children within the federalized European area of justice—a further integration which is explicitly envisaged by Art 36 Hague Child Abduction Convention. Article 11(3) Brussels IIbis Regulation, for example, further specifies the principle of expeditious proceedings contained in the Hague Child Abduction Convention by requiring the courts of the Member States to issue an enforceable decision within six weeks.
Furthermore, European law limits the possibilities of refusing the return of a child according to Art 13(1)(b) Hague Child Abduction Convention in cases where the return could ‘expose the child to physical or psychological harm or otherwise place the child in an intolerable situation’. According to Art 11(4) Brussels IIbis Regulation, a child is to be returned if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. This rule calls for a cooperation of the Member States courts in return proceedings and introduces flexible procedural tools such as undertakings and mirror or safe harbour orders to jurisdictions where those institutions were, so far, unknown. Moreover, European law grants (within the Union) the Member State of the original habitual residence the last word on the return of the child: Art 11(8) Brussels IIbis Regulation clarifies that a decision declining a return based on Art 13 of the Hague Child Abduction Convention does not impact the direct (Art 42 Brussels IIbis Regulation) enforcement of a subsequent decision of the original Member State court which orders—remaining competent under Art 10 Brussels IIbis Regulation—the return of the child. This ‘Brussels IIbis Regulation return procedure’ in the Member State of the child’s original habitual residence reduces the ‘Hague Child Abduction Convention procedure’ in the Member State to which the child has been abducted to a mere preliminary procedure (see notably ECJ Case C-211/10 PPU – Povse).
In order to facilitate the ‘Brussels IIbis Regulation return procedure’ in the Member State of the original habitual residence, Art 11(6) Brussels IIbis Regulation obliges the courts declining a return of the child based on Art 13 Hague Child Abduction Convention to transmit the decision as well as the relevant files and documents to the Member State court of original habitual residence within a month, either directly or through its central authority. The court or the central authority thereafter notifies the parties and invites them to make submissions in those proceedings (Art 11(7) Brussels IIbis Regulation). Furthermore, European law even sets its own procedural standards in order to strengthen the child’s and the applicant’s position in the return proceedings. Article 11(2) Brussels IIbis Regulation, for example, provides that the child is to be heard by the court unless this appears inappropriate having regard to his or her age or degree of maturity. The applicant also has to be heard according to Art 11(5) Brussels IIbis Regulation.
5. Transnational cooperation
Cross-border child cases often require a close cooperation of the states involved and, in particular, of the relevant authorities and courts in order to guarantee the child’s best interests. Both the Hague Conventions and the Brussels IIbis Regulation therefore provide that the contracting and Member States should cooperate mainly through their central authorities in order to implement the aims and purposes of the relevant instruments (Arts 6 ff, 24 of the Hague Child Abduction Convention; Arts 29 ff of the Hague Children Convention; Arts 53 ff Brussels IIbis Regulation; see also European Judicial Network in Civil and Commercial Matters). It is striking that the states have withdrawn their sovereignty rights to a degree such that in some cases even direct cooperation of the courts is allowed. As already seen, this applies, for instance, to the cooperation of courts in cases of child abduction where a return depends on protective measures in the state to which the child should be returned (see 4. above). But also in matters of jurisdiction, courts may cooperate directly, for example, when assessing the transfer to a forum better placed to hear the case (Art 15(6) Brussels IIbis Regulation; Arts 8(3), 9(2) of the Hague Children Convention; see also the duties of cooperation placed upon the courts by ECJ Case C-523/07 – A  ECR I-2805 and ECJ Case C-296/10 – Purrucker II).
6. Choice of law
In contrast to the 1961 Hague Minors Convention and 1996 Hague Children Convention, the Brussels IIbis Regulation does not contain choice of law rules. Hence, European law does not replace the conflict rules of those Conventions (Art 62(2) Brussels IIbis Regulation). However, the Brussels IIbis Regulation, indirectly, influences the applicable law. Both the 1961 Hague Minors Convention and the 1996 Hague Children Convention are inspired by the principle of synchronizing forum and ius: the competent courts should primarily apply their own law (Arts 2, 4(2) of the 1961 Hague Minors Convention; Art 15(1) of the 1996 Hague Children Convention). Only in exceptional cases may the courts apply or take into consideration the law of another state if that state has a substantial connection with the situation (Art 15(2) of the 1996 Hague Children Convention). However, some issues are subject to special conflict rules, such as the so-called ex lege relationships according to Art 3 of the 1961 Hague Minors Convention (‘relationship subjecting the infant to authority, which arises directly from the domestic law’), parental responsibility established by operation of law or agreement (Art 16(1) and (2) of the 1996 Hague Children Convention) or the protection of third parties regarding the child’s representation (Art 19 of the 1996 Hague Children Convention). Furthermore, the 1996 Convention deals with the consequences of a change of the child’s habitual residence and, thus, a change of the applicable law (Arts 15(3), 16(3) and (4), 17 s 2 of the 1996 Hague Children Convention).
The synchronization of the applicable law and jurisdiction aimed at by the 1961 Hague Minors Convention and the 1996 Hague Children Convention assumes that the jurisdiction is also determined by those Conventions. Hence, the question arises whether the lex fori principle applies if jurisdiction—as regularly in European cases (see 3. above)—is determined by the Brussels IIbis Regulation. The answer is in the affirmative. The argument that it is in the best interest of the child if the courts regularly apply their own law prevails.
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